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tion adversely to the claim of the defendant here. By that judg. ment he is necessarily concluded here as to both questions, and for that reason I have not felt at liberty to decide the various questions of fact and law presented, upon which it is claimed that, as an original question, the court should decide that Wing became subject to its jurisdiction in the former suit. Neither have I felt at liberty to decide the questions raised as to the validity of the proceedings to foreclose the mortgage by advertisement. It having been made to appear that the plaintiff's grantor was the owner in fee, and Field was mortgagee in possession only, it necessarily follows that the plaintiff is entitled to redeem the premises.
It is well settled that, although he has the equity of redemption to a part only of the mortgaged premises, he has no right to confine his redemption to that part alone, but, if he comes to redeem, he must redeem the whole mortgaged premises. Boqut v. Coburn, 27 Barb. 230, 233. To make that redemption after the purchaser has entered into possession, he must pay the amount of the mortgage debt and interest, and the value of the improvements made by the purchaser, less the rents and profits received by him. Jones, Mortg. $ 1075. Such is the case where there has been no judgment. But where there has been a judgment for foreclosure, a subsequent incumbrancer, who desires to redeem, would be compelled to pay, not only the amount due upon the mortgage, with interest, but also the costs to which the party has been put by way of asserting his • rights. Thus costs were paid by Field, and for that reason I think · he should be entitled to have them paid back to him upon this re
demption. But the rule which requires the owner of the equity of redemption of a part of the mortgaged premises to pay the whole amount of the mortgage, and redeem the entire premises, is one which was established for the benefit of the mortgagee, and it will not be enforced where the equities of the mortgagee are such that injustice will be done to him if he be compelled to convey the whole premises upon the receipt only of the mortgage debt. It is very clear here that to compel the defendant, who has paid over $6,400 for these premises, to convey the whole of them upon receipt of the mortgage debt, with interest and costs of the foreclosure, would be to work a great injustice to him; and for that reason I think that he should be permitted, if he sees fit, to give up that portion of the premises of which the plaintiff owns the equity of redemption, and the money which stands in the place of the land conveyed to the railroad company, and, upon accounting for the rents and profits of that part of the premises, should be adjudged to be the owner in fee of the remainder of the land bought. Such was the course pursued in the case of Boqut v. Coburn, 27 Barb. 230, 233, which was held to be proper at the general term. In actions of this sort the usual rule is that the plaintiff who comes into court should pay the costs to the defendant although he is successful in the suit. Jones, Mortg. $ 1111. That should be, I think, the rule in this case. The plaintiff comes into court, asking for a favor against the defendant. He has not pnt the defendant in default by any offer to redeem, or by the tender of any amount of money, so that the defendant was perfectly
justified in defending this action until the equitable rights of the parties should be adjusted. That being so, I think it is a proper case for the application of the usual rule that, where a party comes into court to redeem from a mortgage, he usually pays the costs, although he obtains the relief sought. Parker v. Austin,.15 Wkly. Dig. 474; Benedict v. Gilman, 4 Paige, 58.
(75 Hun, 140.)
BRACCO V. TIGHE. (Supreme Court, General Term, First Department. January 12, 1894.) 1. CONTRACTS—CONSIDERATION-MUTUAL PROMISES.
A promise by defendant to give plaintiff the exclusive privilege of furnishing laborers on a certain work is a sufficient consideration for plain
tiff's promise to pay defendant $50 a month for each 100 men so employed. 2. SAME-PERFORMANCE-QUESTION FOR JURY.
A contract provided that defendant would give to plaintiff the exclusive privilege of furnishing the laborers needed on a certain work, or on any other work for which defendant should have the privilege of supplying labor. Defendant never obtained the privilege as to the work specified in the contract, but he obtained it as to other work, and tendered to plaintiff the right to furnish the labor therefor, which plaintiff accepted. Held, that it was a question for the jury whether defendant had substantially performed his contract. Appeal from circuit court, New York county.
Action by Louis Bracco against James G. Tighe. From a judg. ment dismissing defendant's counterclaim, and awarding to plain. tiff the sum of $710 entered on a verdict directed by the court, defendant appeals. Reversed.
The complaint alleges the making of a contract between the parties to the action; a payment by the plaintiff of $600 to the defendant on account thereof; a failure of performance by defendant, which it is alleged, by the terms of the agreement, rendered it void; a demand made upon defendant for repayment to plaintiff of such sum; neglect and refusal to comply with slich demand,--and demands judgment in such amount, with interest from the 6th day of March, 1890. The complaint alleges the agreement to be as follows:
"Whereas, James G. Tighe, of the city of Brooklyn, has the privilege of furnishing the labor required on section two of what is known as the 'Water Extension on Long Island for the City of Brooklyn;' and whereas, work thereon will probably commence between the 6th day of March, 1890, and the first day of May, 1890; and whereas, five hundred or more men will be required on said work, and some will continue for probably two, three, or more years: Now, in consideration of the premises, it is agreed by and between said Tighe and Louis Bracco, of the city of New York, that the said Bracco shall have the exclusive right to supply all the laborers needed on said work, and shall have the sole and exclusive right to board and to lodge said laborers, and for that purpose shall erect, at his own expense, the necessary buildings upon the grounds where said work is to be performed, and at his own expense furnish the necessary food, fire, and light for their maintenance. And it is agreed, upon his part, he shall supply and furnish only good and able-bodied men, and to the number required by the contractor, at the agreed wages of one dollar and fifty cents per day; that said Bracco shall pay to the said Tighe, every month, the sum of tifty dollars for each one hundred men so employed, which shall be in full for all his interest in supplying said laborers as aforesaid, and all other sums of money arising therefroin shall belong to said Bracco alone. And it is further agreed, by and between said parties, that no other person shall
have the privilege of furnishing any laborers on said work so long as the said Bracco shall supply good and suitable men, to the satisfaction of the contractor, therefor; that the said Tighe will not permit, in so far as he can prevent the same, any person locating upon the grounds of said work for the purpose of providing board and lodging for the laborers employed thereon; and the right of said Bracco to discharge any laborers who shall board at any place other than that provided by said Bracco, or who shall act disorderly, shall be absolute. And it is further agreed, by and between said parties, that the term of this agreement shall apply to any other work for which the said Tighe shall have the privilege of supplying labor; that any violation of the covenant of this agreement by either party thereto shall render the same void.
“In witness whereof, the said parties have hereunto set their hands and seals at the city of Brooklyn, this 6th day of March, 1890. "In presence of Benette F. Martella.
J. G. Tighe.
“Louis Bracco." The answer does not put in issue any of the allegations of the complaint, but it avers, by way of counterclaim, the making of a contract embracing the same subject matter as the one set up in the complaint, which it alleges was made in October, 1889, and under which it avers performance on the part of defendant to such an extent that it alleges there became due to the defendant, by reason thereof, the sum of $1,558.50, and demands judgment against the plaintiff in the sum of $958.50 over and above plaintiff's claim, with interest. The cause coming on for trial, the allegations of plaintiff's complaint not being denied, the defendant assumed the affirmative for the purpose of establishing his counterclaim. At the close of his testimony the counterclaim was dismissed, and judgment directed for plaintiff in the amount claimed in his complaint.
Argued before VAN BRUNT, P, J., and O'BRIEN and PARKER, JJ.
James M. G. Smith, for appellant.
PARKER, J. The allegations of the complaint were not put in issue by defendant's answer, and it follows that the court rightly directed a verdict in favor of plaintiff, if it be true that defendant had failed, when he rested his case, to establish his counterclaim. No motion was made to dismiss the answer on the ground that it did not properly allege a counterclaim, and the evidence presented by the defendant to establish it was received without a single objection on the part of the plaintiff. Whether, in view of the fact that none of the allegations of the complaint were put in issue by the answer, some portions of the evidence might have been objected to and excluded, we do not determine. No occasion is presented for a consideration of that question. We are only to inquire, in view of the manner in which the trial was conducted by both parties, whether, at the close of defendant's testimony; he had so far established the counterclaim alleged in his answer, or some portion of it, as should have led the court to have denied the motion to dismiss. On this appeal we must, in disposing of that question, deem all contested facts as established in favor of the appellant, and the most favorable inferences to be drawn from the evidence must be assumed in his favor. Galvin v. Mayor, etc., 112 N. Y. 223, 19 N. E. 675. The defendant testified and in such respect he was supported by the witness Martella, who acted as the interpreter in the
transactions had between plaintiff and defendant) that in November, 1889, an agreement which, with the exception of the date, is in the same language as that set up in plaintiff's complaint, was executed by these parties, and witnessed by Martella; that subsequently it was engrossed, and on the 2d day of December, two days later, an engrossed copy was executed by the same parties, and in the presence of the same witness. These executed writings were both received in evidence. Defendant testifies that a third paper, which is the same as the others, with the exception of the date, and a copy of which is set up in plaintiff's complaint, was made and executed at the request of the plaintiff, who assigned, as a reason for the request, that he was in trouble with two men who claimed to be his partners; that he then had a suit pending for the purpose of securing a decree dissolving the partnership; and that he wanted a new agreement made, so that for the subsequent privileges which should be afforded him through the defendant, of obtaining work for laborers to be employed by him, there should be no opportunity for his alleged partners to claim the right to share in the profits which might ensue. For his accommodation, and because of such request, defendant caused another copy of the agreement then in force to be made, and executed by himself and the plaintiff, the only change being in the date. From his testimony, and that of the witness Martella, it appears that the $600 which plaintiff seeks to recover was paid at the time of the execution of the first agreement. It was paid with the understanding that it was on account of an advancement required to be made in order to obtain the right to furnish laborers on section 2 of what is known as the “Water Extension on Long Island for the City of Brooklyn." That privilege was never obtained, as provided by the agreement. But there was another provision in the agreement, by which it was provided that the terms of the first provision should apply to any other work for which the defendant should have the privilege of supplying labor. Under it, the plaintiff obtained, through the defendant, the privilege of supplying laborers to section 7 of the waterworks, running from Maverick to Rockaway. The contractor testified that at defendant's request he permitted the plaintiff to furnish the Italian laborers, and that the number furnished by him averaged 250 a month for a period of about seven months. The defendant and Martella each testified that plaintiff admitted to them that such a number of men were employed by the contractor through him. In the latter part of April and May, defendant having obtained the privilege of furnishing laborers at St. Johnland, he tendered the right to furnish them to the plaintiff, as by the agreement he had promised. Plaintiff accepted the offer, and put 80 men at work there. Later, and in August, defendant obtained the privilege of furnishing laborers in some quarries in Connecticut, and this he tendered to the plaintiff, who accepted it. Without a more extended review of the evidence, it is sufficient to say that, under the last provision of the agreement, defendant obtained and furnished to the plaintiff the privilege of supplying laborers under at least three different contractors.
The point is made that it does not appear that plaintiff was permitted to furnish all the laborers, but only a portion of them, in the instances where he accepted privileges from the defendant. It does appear that other men than those furnished by him were employed on section 7, but those men were more skillful than the laborers of the class furnished by the plaintiff. The contractor, when asked whether plaintiff had furnished all the laborers, said: "Yes; he furnished all Italian laborers. The other men employed were mechanics." We think the evidence on that subject presented a question for the jury whether there was not a substantial performance of the agreement in such respect.
It was urged on the motion to dismiss the counterclaim, and again here, that the agreement was without consideration. This contention is without force. The promise of the defendant to give the plaintiff the exclusive privilege of furnishing laborers at $1.50 per day on the work named, and all other work where he should have the privilege of supplying labor, was the price for which the promise of the plaintiff was bought to pay defendant $50 a month for each 100 men so employed. The consideration was executory, the counter promise, and not performance, constituting the consideration.
And, the contract being founded on a good consideration, there remained for the defendant to show substantial performance on his part as a basis for the recovery of any sum claimed, or at least substantial performance of everything he had promised to do which the plaintiff had not waived. Now, the agreement represents the parties as having in mind a desire and intention to include within it (1) provisions relating to all the laborers to be employed on section 2 of "Water Extension on Long Island for the City of Brooklyn;" (2) all labor to be employed on any other work for which defendant should obtain the right to furnish laborers. While the specific work which was first made the subject of agreement was probably the inducing cause of the making of the contract, and not unlikely may have been regarded by both parties as of more moment than the other, still, the other provision was substantial, and, although it occupies but a few printed lines, the provisions of the clause preceding it are so incorporated into and made a part of it that it must be treated as if written substantially in these words: "Now, in consideration of the premises, it is agreed between the parties that Bracco shall have the exclusive right to supply all the laborers needed on any work for which Tighe shall have the privilege of supplying labor, and shall have the sole and exclusive right to board and lodge such laborers.
And it is agreed that Bracco shall supply good and able-bodied men, and to the number required by the contractors, at the agreed wages of $1.50 per day; that said Bracco shall pay to the said Tighe, every month, the sum of $50 for each one hundred men so employed, which shall be in full for all his interest in supplying said laborers as aforesaid, and all other sums of money arising therefrom shall belong to said Bracco alone."
Now, it may well be that these two subjects of agreement are so far interdependent that a refusal to perform either would absolve the other party from any obligation to pay for that which had been performed and accepted without knowledge on the part of the accepter of the inability of the other contractor to make full per